Analysis: “No (more) surprises at the Bulgarian border (Case C-393/19)” by David Krappitz
A truck driver is convicted of aggravated smuggling. The tractor unit is confiscated, as provided for by Article 242(8) of the Bulgarian Criminal Code (‘NK’). The owner of the tractor unit, a Turkish transport company, neither knew nor could or should have known its driver’s criminal intentions but has no remedy under said provision. In the appeal proceedings against the conviction of the driver, the Plovdiv Court of Appeal asks the Court of Justice about the compatibility of a provision like Article 242(8) of the NK with Articles 17(1) (Right to property) and 47 (Right to an effective remedy) of the Charter of Fundamental Rights (‘Charter’).
According to Article 51(1) of the Charter, the provisions of the Charter apply to Member States only when they implement EU law. Directive 2014/42/EU sets rules for, inter alia, the confiscation of instrumentalities of crime in the EU, however, only applies to crimes listed exhaustively in Article 3, smuggling not being one of them. However, while Directive 2014/42/EU seeks to amend and expand the provisions of Framework Decision 2005/212/JHA, it only replaces parts of Article 1 and Article 3 of that Framework Decision, with the effect that Articles 2 and 4 applied in the present case (fn 1). The Court thus significantly rephrased the referred questions effectively asking for an interpretation of Articles 2 and 4 of Framework Decision 2005/212/JHA, read in the light of Articles 17 and 47 of the Charter.
While Article 2(1) of Framework Decision 2005/212/JHA obliges Member States to take the necessary measures to enable confiscation of instrumentalities from criminal offences like the offence in the main proceedings, it makes no distinction as to the proprietor. Recital 3 requires ‘taking account of the rights of third parties in bona fide’. The Court did so in the light of Article 17(1) of the Charter: With the aim of the confiscation being to prevent the unlawful importation of goods into the country, the Court considered the definitive deprivation of the respective property ‘a disproportionate and intolerable interference impairing the very substance of [the] right to property’ (paragraph 55). Thus, even though Article 2(1) of Framework Decision 2005/212/JHA does not, through its wording, preclude confiscation of property owned by bona fide third parties, the reading of said Article in the light of Article 17(1) of the Charter necessitates such a preclusion. This finding significantly strengthens the rights of bona fide third parties.
The second question turns to the fact that Article 242(8) of the NK allows for confiscation of property belonging to non-persecuted parties without, however, providing such parties with an effective remedy. The Court found that Article 4 of Framework Decision 2005/212/JHA obliges Member States to ensure persons affected by confiscation measures have effective legal remedies, drawing no distinction as to their involvement in the criminal proceedings. He confirmed that reading in the light of Article 242(8) of the NK.
The takeaways are: the judgment significantly strengthens bona fide third parties by excluding their property from confiscation in criminal proceedings. In addition, it strengthens procedural rights of parties not involved in the proceedings. The national provision at hand pre-dates Bulgaria’s accession to the EU and uncovers the non-transformation of EU law into national law. The case shows the growing relevance of EU fundamental rights in ensuring fair trials and the protection of human rights in the Member States. It also contains an example of where, in the case of Article 2(1) of Framework Decision 2005/212/JHA, a provision of EU law is to be interpreted in the light of the Charter to ensure its application in conformity with fundamental rights. Despite (still) being limited in application, the Charter continues to gain prominence in both the EU and the national legal spheres (fn 2).
Read the judgment in full here.
David Krappitz is a Policy Officer at the Federal Ministry for Economic Affairs and Energy, Berlin, and an LL.M. postgraduate from the College of Europe, Bruges. The Analysis reflects the author’s views only.
(fn 1) Unlike in ‘Agro in 2001’ (C-234/18) the main proceedings of which were civil in nature, Framework Decision 2005/212/JHA only covering criminal proceedings.
(fn 2) Other late examples being L and P (Joined Cases C-354/20 PPU and C-412/20 PPU), Commission v Hungary (Disclosure of information on persons providing financial support to associations) (C-78/18), FMS and others (Joined Cases C-924/19 PPU and C-925/19 PPU), Commission v Hungary (Rights of usufruct over agricultural and forestry land) (C-235/17), and LM (C-216/18 PPU).